Inheritance Tax Planning

Transcription

1 clarityresearch Inheritance Tax Planning Inheritance Tax (IHT) is often regarded as the easiest tax to avoid paying. However, care must be taken over the gift with reservation rules, and the income tax on pre-owned assets, which make IHT difficult to completely avoid for items like the main family home, even with the recent introduction of a transferable nil rate band between spouses. Please refer to our claritylaw pages for further discussion of will planning and trusts, used for IHT planning and contact details should you require specific financial or legal advice. Inheritance Tax, Reliefs & Allowances Inheritance tax (IHT) is charged on the value of an estate at death, on certain lifetime gifts and some transfers into and out of trusts. The first 325,000 (frozen until April 2021) of an individual s estate on death is exempt and thereafter IHT is charged at 40%. The IHT rate on chargeable lifetime transfers (e.g. to most trusts) is 20%. From April 2012, the rate of IHT can be reduced to 36% if at least 10% of the estate (net of reliefs and the nil rate band) is given to charity. In addition, a nil-rate band for residential property will be introduced from April 2017 as detailed below. It is possible to reduce or eliminate liability to IHT by taking advantage of a number of reliefs and exemptions. The main ones are as follows: Main IHT Reliefs and Exemptions Relief/Exemption Details Nil-Rate Band No tax on first 325,000 of estate on death. Main Residence Nil-Rate Band No tax on value of main residence/proceeds thereof passed to a direct descendant from April 2017, within available band. Band is 100k from Apr 17; 125k from Apr 18; 150k from Apr 19 and 175k from Apr 20. Band tapered by 1 for every 2 properties are over 2m Inter -Spouse Transfer Complete exemption unless the recipient spouse is non UK domiciled. Potentially Exempt Transfer Complete exemption on most outright gifts if donor survives for 7 years from date of gift. Taper Relief Tax due on gifts made within 7 years of death reduced by 20% (years 3-4); 40% (years 4-5); 60% (years 5-6); 80% (years 6-7). Normal expenditure out of income Complete exemption for genuine gifts out of surplus income where a pattern of such gifts is established. Business Property Relief Up to 100% relief on business assets, includes assets used in a trade and certain shareholdings. Agricultural Property Relief Up to 100% relief on agricultural assets including land and possibly a farmhouse. Annual Gifts Exemption Up to 3,000 pa. Unused exemption for previous year only can be carried forward. Small Gifts Up to 250 to each individual in each tax year.

2 Nil-Rate Band This is the amount that you can leave to your beneficiaries on your death, with no IHT charge being made. It is currently 325,000 (frozen until April 2021). It is reduced by any gifts or other transfers of assets that you have made in the 7 years prior to your death. Please note that any unused nil-rate band on the death of the first spouse can be transferred to the surviving spouse for future use, in addition to their own nil-rate band. Main Residence Nil-Rate Band An additional nil-rate band will be available from April 2017 for property which is, or has been, a main residence. The property must be passed to direct descendants. The band will also be available when an individual downsizes or ceases to own a home on or after 8 July 2015, and the assets or an equivalent value are left to direct descendants. The band will be introduced as follows, increasing by CPI after April 2021: April ,000 April ,000 April ,000 April ,000 Any unused band on death can be passed to a surviving spouse as for the standard nil-rate band. The band is tapered for properties or property proceeds in excess of 2 million, by 1 for every 2 in excess of this figure. Transfers Between Spouses Transfers between spouses whether during life or on death are exempt unless the transferor spouse is UK domiciled and the transferee spouse is not. In the latter case, the exemption is limited to the level of the nilrate band, although the non-domiciled spouse can elect to be treated as UK domiciled before or within 2 years of death, bringing their worldwide assets into the UK IHT net. Elections will be irrevocable whilst the individual remains UK resident, but can be revoked once the individual has been non-uk resident for more than four consecutive tax years. The exemption also applies to where one of the spouses is given an interest in possession under a trust, possibly created by a will. Potentially Exempt Transfer (PET) If you make an outright gift to another individual, and survive for 7 years there will be no tax to pay on your death. If you survive for at least 3 years but less than 7 then the tax due on your death is reduced by taper relief. However, this relief is often more illusory than real. The problem is that if you survive for say 4 years and then die, the PET is set against your nil rate band first before the balance of your estate. For example: someone with a house worth 325,000 and cash of 325,000 decides to gift the cash and dies just over 5 years later. You might expect the IHT to be reduced by 60% (a saving of 78,000 i.e. 325,000 X 40% X 60% taper relief). In fact, the position is that the 325,000 gift is set against the Nil Rate Band and the balance of the estate is taxed at 40% - i.e. tax due 130,000. The PET has resulted in no tax saving whatsoever. Putting it another way, the taper is applied to the tax payable. If the tax payable is nil (as is the case in the example above because the amount falls within the nil rate band i.e. 0% tax), then the taper effect will also be nil.

3 Gifts out of Income A gift will be exempt if: it was clearly made out of income (not capital); was part of the transferors normal pattern of expenditure (generally established by making a pattern of similar gifts for at least 2 years); the transferor is left with enough income to maintain his standard of living. Annual Gifts Allowance This is 3,000 p.a. and any allowance not used in the previous year can be carried forward once only. The allowance is per individual and so a husband and wife jointly could make gifts of 12,000 in the first year and 6,000 p.a. thereafter. Gifts on Marriage Certain gifts in consideration of marriage are exempt including 5,000 to children and between 1,000-2,500 for remoter relatives and friends. Domicile The concept of Domicile is very important in IHT. Broadly speaking an individual acquires a domicile of origin on birth (generally the domicile of their father) and will keep this domicile forever unless the facts suggest that a domicile of choice has replaced it. A domicile of choice might be assumed for example if someone moved away from the UK, severed all permanent links with the UK and settled permanently in a new country with no intention of returning to the UK other than for occasional visits. The concept of deemed domicile also applies for IHT, where an individual is deemed to be UK domiciled if currently - they have been UK resident for 17 out of the last 20 years. However, from April 2017 (and subject to legislative consultation), those who have been resident in the UK for more than 15 out of the past 20 tax years will be treated as deemed UK domiciled for all tax purposes. This will mean that they will no longer be able to use the remittance basis and they will be deemed domiciled for inheritance tax purposes. In addition, those who had a domicile in the UK at the date of their birth will revert to having a UK domicile for tax purposes whenever they are resident in the UK, even if under general law they have acquired a domicile in another country. For a UK domiciled individual, please see our separate Research Note on UK Residence and Domicile for further details. Please also note that an individual from France, Italy, India or Pakistan may be covered by a long-standing double taxation treaty, and not treated as deemed UK domicile. IHT is charged on death on worldwide assets, wherever these are located. For a non- UK domiciled individual IHT is only charged on assets physically located in the UK, such as UK property. Inheritance Tax Planning Inheritance Tax (IHT) is often regarded as the easiest tax to avoid paying. Quite simply if you give everything away more than 7 years before you die then your executors will probably have no IHT to pay. Unfortunately for gifts to be effective, you are not able to retain any benefit, i.e. they must be outright and therefore giving away everything is simply not practical, or desirable, for almost everyone. Gifts With Reservation Herein lies the problem most normally encountered with IHT planning how to give away an asset, and thus save the beneficiaries 40% tax, but still continue to gain benefit from it? HMRC legislation dictates that a transfer of legal title to an asset will not be effective for IHT purposes if the person making the gift (the donor) retains a benefit. Therefore, the questions often asked are:

4 How do I give away my house and continue to live in it? This is very difficult, but has historically not been impossible. However, the introduction of an income tax charge on pre-owned assets may render much planning ineffective (see below). How do I give away my share portfolio or cash and continue to receive an income this is even more difficult although there are a number of insurance company plans that claim to provide a solution (see below). Funding For Inheritance Tax Many people take the view that IHT planning is not practical and instead they take out an insurance policy (normally a whole of life plan), which will one day, on their death, pay out a sum to settle any IHT with. The policy benefits are normally written under trust and therefore will be free from IHT. Please note that this does not in itself reduce the IHT payable, it simply provides for an additional sum to pay the IHT and so increase the net payment to the beneficiaries it is therefore necessary to consider whether your beneficiaries require such additional protection. Please see the Research Note in the Protection section for further details. IHT Planning & the Home For many people their property may well be their most valuable asset. The IHT nil rate band is only 325,000, and even where the full nil rate band is transferred between spouses, the resulting nil rate band may only be the equivalent of around 650,000 (although the residential nil-rate band will increase this from April 2017 as detailed above). Many homes in the UK are worth significantly more than this with the rapid house price inflation experienced in the last few years. For this reason there is a considerable amount of IHT planning surrounding the family home. The following are some of the major ideas: Gift and Rental The property is gifted to grown up children. The parent continues to live in the property but pays a full market rent to his/her children. Equity Release The parent(s) borrow against the property with the interest rolled up and deducted from the value of the property on the last parent s death. The lump sum borrowed is gifted to children. Insurance Schemes There are a variety of off the shelf IHT planning schemes on the market. An analysis of these schemes is outside of the scope of this section, not least due to the number of schemes available and the complexity. What these have your cake and eat it schemes all attempt to achieve is a gift of assets with some continuing right to income or capital after the gift, without bringing into play the gift with reservation or pre-owned assets tax rules. Tenancy It should be noted that any property owned by a husband and wife as joint tenants passes automatically to the surviving spouse and is not subject to the terms of the will. In many cases a home will be owned under a joint tenancy. It is possible to create a tenancy in common arrangement instead and under these circumstances the share of the deceased spouse passes under the terms of their will. This type of arrangement is often used where IHT planning is anticipated with the family home.

5 Foreign Property Foreign property and investments may be made and retained by an individual in his own name. However, direct ownership of those foreign assets can present disadvantages such as the obligation to comply with local administrative procedures and succession laws on death, and the possibility of facing wealth or inheritance taxes imposed by the country in which the asset is situated. Consideration should therefore be given to ownership through other vehicles including companies and trusts. Some countries, notably France and Spain, are civil law jurisdictions and the concept of a personal representative is alien. Furthermore, property located in these jurisdictions may be governed by forced heirship rules with a certain percentage passing to defined beneficiaries irrespective of the wishes of the deceased. For these reasons many UK individuals who own French holiday homes do so through a societe civile immobiliere (SCI). This should enable them to avoid the French forced heirship rules and administration problems by leaving their shares by UK will. However, this is an area fraught with difficulty on both sides of the channel and expert advice is essential. The Chancellor announced in the 2007 Budget that HMRC would no longer seek to impose a benefit in kind tax charge where the sole activity of the company is to hold the property for occupation or letting; however, care should still be taken in this area, for example to ensure that the company is not treated as UK resident. IHT Planning Advice For further details on making a Will, Will Planning and using Trusts to help with IHT Planning, please see our claritylaw website pages, or contact your usual clarity adviser. Risk Warning: The past is not necessarily a guide to future performance. The value of your investment and the income from it can fall as well as rise and is not guaranteed. You may not get back the full amount invested. Our views are based upon our understanding of current legislation in England & Wales. Levels and bases of, and reliefs from, taxation are subject to change and their value to you will depend upon your personal circumstances. You should not act on any of the information without seeking professional advice. clarity is authorised and regulated by the Financial Conduct Authority. The Financial Conduct Authority does not regulate all types of Pensions, Mortgages or Taxation Advice. claritylaw is brought to you in association with Taylor Vinters solicitors a firm regulated by the Solicitors Regulatory Authority April 16